> since the reasoning here seems very specific to the facts of case.
as it should be! i think that neither "all decryption is testimonial" or that "no decryptions are testimonial" are good policies. imho, decryptions should be treated in the same manner as other paper based evidence production requests: most of the time, the government cannot compel you to produce evidence testifying against you, but there are certain exceptions ("foregone conclusions" included).
> What if this was a murder case and the defendant had stored notes about his murder on the computer?
i don't think you're interpreting the "foregone conclusion" doctrine correctly. what it means is that keys, passwords, decryptions, etc cannot be used for the police to go on fishing expeditions for evidence. if they know you have incriminating evidence and can show that, then they can compel the production of that evidence. this is something that happened in US v Fricosu, in which Fricosu actually was compelled to decrypt. note that this ruling, which does not compel decryption, is entirely consistent with US v Fricosu
My reading is that the court implied, and what likely could be argued/people would like to argue, is that, even if police were aware of the existence of specific documents, you might still be able to use the Fifth Amendment to prevent decryption. If that was the clear holding of this case, that would be significant. My point about the murder case was to replicate a factual scenario in which the government knew of specific files, and the possession of those files alone would not constitute a crime: could the would-be defendant still use the protections of the Fifth Amendment to prevent decryption? That factual scenario is comparable to Fricosu: the government knew of the existence of specific files and compelled decryption. Given the dicta in this case, however, it is arguable that, even in such a scenario, a defendant would be able to prevent decryption, thus creating an inconsistency with Fricosu. As far as I am aware, only the Fricosu court has discussed this issue--and that was cursory, and from a district court in Colorado.
I'm sorry, I don't understand how the fact that possession itself is criminal is relevant. If the government actually knew of the existence and location of illegal files on the case, the foregone conclusion doctrine would allow them to compel decryption (as in U.S. v. Boucher). The same would be true of your hypothetical murder evidence.
If you cannot decrypt the files, can you be said to be in possession of the child pornography? In other words, even if the files are child pornography, if he cannot decrypt them himself, it isn't clear if he is guilty of the crime. OTOH if he can, it is clear he is.
> even if police were aware of the existence of specific documents, you might still be able to use the Fifth Amendment to prevent decryption
not if it knew that these documents were under your control and were incriminating. what exactly suggests your reading? the opinion was pretty specific about how the government could not prove the existence of any specific incriminating files on the defendant's drive, and thus, it was not a foregone conclusion
> the murder case ... possession of those files alone would not constitute a crime
whether the possession of the files is in and of itself a crime is irrelevant to the fifth amendment. the only thing that matters is whether your testimony can be used to incriminate yourself.
> Given the dicta in this case, however, it is arguable that, even in such a scenario, a defendant would be able to prevent decryption, thus creating an inconsistency with Fricosu
Author of the article disagrees. From the article:
> Also note that the court’s analysis isn’t inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.
I understand that this case was decided on grounds consistent with Fricosu, and that the court held that the testimony was not a foregone conclusion and therefore the court could not compel decryption. I am not disputing that that is the holding of this case.
However, in addition to that, the court notes that there are two reasons why the Fifth Amendment prevents compelled description. Besides the foregone conclusion doctrine, there is discussion such at 22: "the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." This to me implies the court's belief that the act of production would be testimonial because it would imply that Doe possesed and had access to incriminating files. Since possessing and having access to child pronography is a crime, that alone--that act of him affirming that he had access to such files by providing a decryption key--would incriminate him. By implication, this would not be the case if possession of certain docuemnts was not itself a crime, yet these documents could be incriminating.
The court spends 2 paragraphs discussing this, but I think it is not inconceivable that this sort of argument could be applied to other cases where the foregone conclusion doctrine might otherwise be succesfully applied to compel decryption, since ostensibly any 1 of the court's two points could be used to prevent compelled decryption. I wonder if this conclusion is based solely on the nature of the crime alleged here, or would be applicable to other crimes where merely showing that you have possession to access to incriminating documents is not itself a crime, as in child pornography.